United States v. Lott

14 M.J. 489, 1983 CMA LEXIS 23333

• Court: United States Court of Military Appeals
• Decided: January 31, 1983
• Docket: No. 41,022; SPCM 15414
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

Two separate, but identical, specifications alleged that on February 16,1980, appellant committed an indecent assault on Private E-l Julie K. Cummings “by grabbing her, kissing her, and fondling her breasts and crotch, all with intent to gratify his sexual desires,” in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. He also was charged in two identical specifications with having violated Article 92, UCMJ, 10 U.S.C. § 892, on February 16,1980, “by touching, kissing and caressing the person and body of Private E-l Julie K. Cummings, a female trainee,” contrary to a lawful general regulation at Fort Dix, New Jersey.

At his trial on these and other charges before a military judge sitting as a special court-martial, appellant filed a motion for appropriate relief, in which he contended that the assault charges were multiplicious with those involving violations of the Fort Dix regulation and that findings of guilty should not be entered on both sets of charges.¹ This motion was denied, but after finding appellant guilty of all the charges against him, the military judge treated the assaults as multiplicious for sentencing with the violations of the Fort Dix regulation, which prohibited various contacts with trainees. The sentence adjudged was a bad-conduct discharge, 6 months’ confinement, partial forfeiture of pay, and reduction to Private E-l. Upon review of the case, the Court of Military Review reduced one of the indecent assaults to assault consummated by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928; but upon reassessment, it affirmed the original sentence.

Having considered this case in light of the analysis in United States v. Baker, 14 M.J. 361 (C.M.A.1983), we are convinced that appellant should not be convicted simultaneously of a simple or indecent assault, and of violating a general regulation by committing tuat same assault. Therefore, the findings of guilty on the two specifications under Charge III should be set aside and that charge dismissed. However, since the judge treated Charge III as multiplicious with the assault offenses for purposes of sentencing, we are convinced that appellant was not prejudiced as to the sentence adjudged.

Accordingly, the decision of the United States Army Court of Military Review is reversed as to Charge III and its specifications; the findings of guilty thereof are set aside and Charge III is dismissed. The decision as to the remaining findings and the sentence is affirmed.

Judge FLETCHER concurs.

1 . Also, appellant contended unsuccessfully that the two assaults — although separated by a brief interval — should be viewed as only one offense.